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Jason T. Eberl, Ph.D. Semler Endowed Chair for Medical Ethics Marian University College of Osteopathic Medicine Affiliate Faculty, Indiana University Center.

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Presentation on theme: "Jason T. Eberl, Ph.D. Semler Endowed Chair for Medical Ethics Marian University College of Osteopathic Medicine Affiliate Faculty, Indiana University Center."— Presentation transcript:

1 Jason T. Eberl, Ph.D. Semler Endowed Chair for Medical Ethics Marian University College of Osteopathic Medicine Affiliate Faculty, Indiana University Center for Bioethics (317) 955-6601

2  A 13 year-old girl, Jahi McMath, suffers complications from tonsil surgery and is declared “brain dead.”Jahi McMath  Hospital wants to remove her body from mechanical ventilation as she meets the accepted legal criterion for being declared dead under the Uniform Determination of Death Act.  Parents are fighting a legal battle to keep her on “life support” in the hope that she will recover the ability to breathe on her own and wake up.

3  Traditional Definition of Death:  Concept: Loss of Vital Metabolic Functions  Death: “The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereupon, such as respiration, pulsation, etc. (Black’s Law Dictionary, 4 th ed. 1951).  Criterion: Irreversible Cessation of Cardiopulmonary Function  “Death occurs precisely when life ceases and does not occur until the heart stops beating and respiration ends” (California District Court of Appeal, Thomas v. Anderson 1950).  Heart, lungs, and brain cease to function within moments of each other  Technological developments allow for heart and lungs to continue functioning after cessation of brain functioning

4  Ad hoc Committee of the Harvard Medical School (1968): Ad hoc Committee of the Harvard Medical School (1968)  Concept: Irreversible Coma with Loss of Integrative Organic Unity  Criterion: Irreversible Cessation of Whole-Brain Function  “In this report, however, we suggest that responsible medical opinion is ready to adopt new criteria for pronouncing death to have occurred in an individual sustaining irreversible coma as a result of permanent brain damage.”  “The term ‘coma’ is used to designate this state of unreceptivity and unresponsitivity. But there is always coincident paralysis of brain-stem and basal ganglionic mechanisms.”  “We are concerned here only with those comatose individuals who have no discernible central nervous system activity.”

5  Reception of Whole-Brain Criterion:  President’s Commission (1980-1)  Uniform Determination of Death Act: Uniform Determination of Death Act  “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.”  Vatican Working Group (1992)  “A person is dead when there has been total and irreversible loss of all capacity for integrating and coordinating physical and mental functions of the body as a unit.”  “Death has occurred when... there has been an irreversible cessation of all brain functions, even if cardiac and respiratory functions which would have ceased have been maintained artificially.”

6  “My colleagues and I have defined death as the permanent cessation of functioning of the organism as a whole. ‘The organism as a whole’ is an old biological concept that refers not to the whole organism (the sum of its parts) but to that set of vital functions of integration, control, and behavior that are greater than the sum of the parts of the organism, and that operate in response to demands from the organism’s internal and external milieu to supports its life and to maintain its health. Implicit in the concept is the primacy of the functional unity of the organism … The criterion of death that best fulfills this definition is the irreversible cessation of all clinical functions [i.e., ‘systemic integrated functioning’ (President’s Commission 1981)] of the entire brain.” (Bernat 1998)Bernat 1998  “A review of the critical functions of the organism as a whole reveals that they are subserved within the brainstem, hypothalamus, thalamus, and cerebral hemispheres. Respiration and blood pressure control are generated in the brainstem. The complex array of regulatory, feedback, and homeostatic mechanisms are integrated in the brainstem and hypothalamus. Consciousness requires the ascending reticular activating system of the brainstem, thalamus, and cerebral hemispheres. Therefore, the clinical functions of each major part of the brain must be absent for the cessation of the critical functions of the organism as a whole.” (Bernat 2001)

7  “Dead donor” Rule:  (1) Vital organs should be taken only from dead patients.  (2) Living patients should not be killed for or by organ procurement.  Difficulties in procuring vital organs under the traditional concept/criterion of death:  Rapid deterioration of organs once the flow of oxygenated blood ceases  Difficult to allow for more than one transplant team to procure different organs  Families have little time to decide whether or not to donate the deceased’s organs

8  Advantages of whole-brain criterion for clinically establishing death:  Allows for continuous supply of oxygenated blood to vital organs up to the point of organ removal.  Allows for more rapid procurement of organs for the sake of critical-care recipients.  Allows time for more than one transplant team to organize and prepare for the procurement/transplant procedure.  Allows time for physicians or OPOs (Organ Procurement Organizations) to consult with families regarding donation.

9  Robert Veatch (1988):  Concept: Permanent Loss of Consciousness  “A person should be considered dead when there is an irreversible loss of higher brain functions, i.e., certain functions normally associated with the neocortex that include the capacity to be conscious, to think, feel, and be aware of other people.”  Criterion: Irreversible Cessation of Neocortical (“Higher- Brain”) Function  Operative Distinction: Death of the Person vs. Death of the Organism

10  Concept of personhood:  “When, and only when, there is the capacity for organic (bodily) and mental function together in a single human entity is there a living human being” (Veatch 1993).Veatch 1993  Appeal to “Judeo-Christian” conception of human nature  “I maintain that I am in essence the conjoining of soul (mind) and body... If either one is irreversibly destroyed so that the two are irretrievably disjoined, then I—this integrated entity—no longer exist” (Veatch 1988).

11  Advantages of neocortical criterion over whole-brain criterion:  Allows for more rapid procurement of organs for the sake of critical-care recipients.  Allows greater time for preparation on the part of families and transplant teams.  Concerns regarding neocortical criterion:  Families have difficult time accepting that a spontaneously breathing and warm body is “dead.”  We wouldn’t bury a spontaneously breathing, but permanently unconscious body.  “Slippery Slope” from defining death in terms of unconsciousness to defining death in terms of “minimal” consciousness or severe mental disability.

12  Concept of human nature  Form of neo-Platonic dualism  Goes against human phenomenological experience of our “embodied” existence  Definition of human person as a “rational animal” (Aristotle)

13  Appeal to “Judeo-Christian” concept of human nature  Thomistic foundation for Christian approach  “As the source of life and the single organizing principle of the body, the soul not only enables the person to breath, circulate blood, think, choose, etc., but it also unifies these diverse activities into an integrated whole or system. When the soul separates from the body at death, the remaining organism is deprived of its internal unity and its radical capacity for human actions. Thus, human death... [is equated] with the death of the organism as a whole” (Smith 1990).  Orthodox Jewish concept and criterion of death  “Death in [Orthodox] Judaism requires permanent and irreversible cessation of respiration” (Rosner 1999).

14  Epistemological Problem  Difficult to determine accurately which structures of the brain are correlated with intellective activity and when such structures become irreversibly non-functional.  Violation of Ockham’s Razor  The neocortical criterion requires the existence of first a conscious rational person, then an unconscious living organism, and finally a lifeless corpse.  “Since the higher-brain standard does not square with the organismic conception of death, the [neocortical criterion] inherits this implication: that in cases of PVS or permanent coma, two beings die... one more than we generally assume” (DeGrazia 1999).

15  Case of Terri Schiavo Case of Terri Schiavo  In a clinically diagnosed “persistent vegetative state” – i.e., irreversibly comatose – for 15 years  Did not meet criteria, however, for whole-brain death  Parents and others argued to maintain medically- assisted nutrition and hydration based, in part, on epistemic uncertainty regarding her diagnosis  Post-mortem autopsy consistent with the clinical diagnosis of PVS

16  Michael Schiavo implies higher-brain concept of death on his wife’s epitaph:  Departed this earth / February 25, 1990  At peace March 31, 2005

17  Even on the premise that Terri Schiavo was not dead and was still a person for 15 years while in PVS, the question persists whether medically- provided nutrition and hydration could licitly be discontinued.

18  It is arguably morally licit to remove the feeding tube insofar as…  There is no hope of recovery  Terri’s quality of life of virtually non-existent  It is apparently in accord with her previously-stated wishes  It is arguably illicit to remove the feeding tube insofar as…  It is functioning effectively to maintain Terri’s life, which is intrinsically valuable  Quality of life is not a proper metric by which to make care decisions  It is doubtful whether she had previously-expressed wishes in this regard.

19  Schiavo’s case differs significantly from McMath’s case, even though the two have become conflated.conflated  Schiavo suffered from irreversible loss of consciousness, not total brain failure, and thus did not meet either criteria for declaring death as stipulated in the UDDA.  McMath suffers from total brain failure (whole-brain death), which satisfies one of the two criteria for declaring death under the UDDA.  Schiavo experienced spontaneous heartbeat and respiration; she required only medically-assisted nutrition and hydration to sustain her life.  McMath requires mechanical ventilation to stimulate cardiac and respiratory activity since her brainstem is no longer controlling these vital functions.  Thus, where there are arguable reasons to have maintained Terri Schiavo via tube-feeding for 15 years; there is no reason to maintain Jahi McMath’s body via mechanical ventilation.

20  Shewmon (2001): Shewmon (2001)  (1) Somatic integrative unity does not entirely depend on whole-brain functioning; i.e., such unity can be maintained despite the loss of whole-brain functioning.  (2) The brain’s role is more modulatory of an already unified living organism, than constitutive of that organism’s present unity; somatically integrative functions are all the more effective when modulated by the brain, but they do not entirely vanish without the brain.   (3) Loss of somatic integrative unity is not a physiologically tenable rationale for equating whole-brain death with death of an organism as a whole.

21  “Litany of non-brain-mediated somatically integrative functions”:  Homeostasis of various mutually interacting chemicals, cellular waste handling, energy balance, maintenance of body temperature, wound healing, infection fighting, stress responses, proportional growth, and sexual maturation.

22  Long-term survival of “brain-dead” patients:  Of 56 cases, “one-half (28/56) survived for more than 1 month, nearly one-third (17/56) more than 2 months, seven (13%) more than 6 months, and four (7%) more than 1 year, the record being 14½ years (and still going) [T.K.; d. 2006 after 22 years]” (Shewmon 1998).  Extended survival of “brain-dead” pregnant women who experience “the complex, teleological, organism- level, physiological changes of pregnancy (weight gain, internal redistribution of blood flow favoring the uterus, immunologic tolerance toward the fetus, etc.), which occur despite the absence of brain function” (Shewmon 2001).“brain-dead” pregnant women

23  “Brain-dead” pregnant women as “biological incubators”  Measures required to maintain the body of a twenty-seven year-old pregnant woman for nine weeks: mechanical ventilation, vasopressors to treat fluid-resistant hypotension, warming or cooling blankets to treat temperature lability, nutritional support, replacement hormones to treat endocrine abnormalities, aggressive surveillance for and treatment of infections, and heparin prophylaxis  “Maximum effort was directed at treating the severe hypotension, temperature fluctuations, diabetes insipidus, hypothyroidism, and cortisol deficiency that were thought to be the result of the autoregulatory function of the brain” (Field 1988).

24  “Holistic-level” bodily functions are not necessarily “integrative.”  Body’s vital metabolic functions of circulation and respiration cannot be carried out spontaneously in the absence of brainstem functioning.  A human body’s having control over its vital metabolic functions is a key criterion for its having integrative unity.  Such control must be exercised over the activities of circulation and respiration, which have been long understood as the key fundamental metabolic functions necessary for somatic integrative unity.  Without circulation and respiration, all other holistic-level somatic functions rapidly cease.  Shewmon’s case for abandoning the whole-brain concept of death depends upon there being cases in which spontaneous heartbeat and respiration occur in the absence of whole-brain functioning; and he has not presented any such case.

25  Long-term Survival of “Brain-Dead” Patients  Patients in all such cases require mechanical ventilation; none are capable of spontaneous respiration as well as other vital metabolic activities.  All such cases involve brain injury occurring at a young age; children’s nervous systems are more “plastic” than adults’.  “Age and survival capacity were inversely related. Adults treated indefinitely all succumbed to spontaneous arrest within 4 months. By contrast, children seemed capable of surviving virtually indefinitely. The three most spectacular survivors—with durations of more than 2 years— were all young children, two being newborns” (Shewmon 1998).

26  New rationale supporting the whole-brain criterion from the President’s Council on Bioethics:President’s Council on Bioethics  “Determining whether an organism remains a whole depends on recognizing the persistence or cessation of the fundamental vital work of a living organism— the work of self-preservation, achieved through the organism’s need-driven commerce with the surrounding world. When there is good reason to believe that an injury has irreversibly destroyed an organism’s ability to performs its fundamental vital work, then the conclusion that the organism as a whole has died is warranted“ (PCB 2008).PCB 2008

27  Problems with neocortical criterion  No compelling reason to abandon the whole-brain criterion  Clinical guidelines for organ procurement  “Dead donor” rule  Tests for whole-brain death (Plum 1999)  Clinical Criteria: (1) severe coma of known cause, (2) absent brainstem reflexes, and (3) sustained apnea  Confirmatory Tests: (1) electroencephalography, (2) evoked responses (brainstem auditory, somatic, and motor), and (3) arteriography

28  Ad Hoc Committee of the Harvard Medical School. 1968. “A Definition of Irreversible Coma.” Journal of the American Medical Association 205: 337-40.  Bernat, James. 1998. “A Defense of the Whole-Brain Concept of Death.” Hastings Center Report 28: 14-23.  ———. 2001. “Philosophical and Ethical Aspects of Brain Death." In Brain Death, edited by Eelco F. M. Wijdicks. Philadelphia: Lippincott Williams & Wilkins.  DeGrazia, David. 1999. “Persons, Organisms, and Death: A Philosophical Critique of the Higher-Brain Approach.” The Southern Journal of Philosophy 37: 419-40.  Field, D. R., E. A. Gates, R. K. Creasy, A. R. Jonsen, R. K. Laros, Jr. 1988. “Maternal Brain Death During Pregnancy: Medical and Ethical Issues.” Journal of the American Medical Association 260: 816-22.  Plum, Fred. 1999. “Clinical Standards and Technological Confirmatory Tests in Diagnosing Brain Death.” In The Definition of Death, edited by Stuart Youngner, Robert Arnold, and Renie Schapiro, 34-65. Baltimore: Johns Hopkins University Press.  President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. 1981. Defining Death: Medical, Legal, and Ethical Issues in the Definition of Death. Washington, D.C.: U.S. Government Printing Office.  President's Council on Bioethics [PCB]. 2008. “Controversies in the Determination of Death" [white paper]. Washington, D.C. Available at  Rosner, Fred. 1999. “The Definition of Death in Jewish Law.” In The Definition of Death, edited by Stuart Youngner, Robert Arnold, and Renie Schapiro, 34-65. Baltimore: Johns Hopkins University Press.  Shewmon, D. Alan. 1998. “Chronic ‘Brain Death’: Meta-analysis and Conceptual Consequences.” Neurology 51: 1538- 45.  ———. 2001. “The Brain and Somatic Integration: Insights Into the Standard Biological Rationale for Equating ‘Brain Death’ With Death.” The Journal of Medicine and Philosophy 26: 457-78.  Smith, Philip. 1990. “Brain Death: A Thomistic Appraisal.” Angelicum 67: 3-35.  van Inwagen, Peter. 1990. Material Beings. Ithaca: Cornell University Press.  White, R., H. Angstwurm, and I. Carrasco de Paula, eds. 1992. Working Group on the Determination of Brain Death and Its Relationship to Human Death. Vatican City: Pontificia Academia Scientiarum.  Veatch, Robert. 1988. “Whole-Brain, Neocortical, and Higher Brain Related Concepts.” In Death: Beyond Whole-Brain Criteria, edited by Richard Zaner, 171-86. Boston: Kluwer.  ———. 1993. “The Impending Collapse of the Whole-Brain Definition of Death.” Hastings Center Report 23: 18-24.

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